Even Constitution of India could be named as First Victim of ‘Article’ 35A

Article 370(1-d) was surely not for amending the Constitution of India

n Daya Sagar
When we discuss The Constitution (Application to Jammu & Kashmir) Order, 1954 C.O. 48 with respect to adding Art35A in Constitution of India the question was not of modification of an existing constitutional provision but it was of adding a new article and that could be only by amending the constitution. In reference to the case under study it could be opined / also said that the President had not simply ordered application of some provisions of Constitution of India ( that existed in the first constitution of India or have been incorporated in constitution of India by Parliament at some later date after 26 Jan 1950 exercising the constituent power available under article 368) to Jammu & Kashmir with exceptions and modifications of but had in a way unduly overstretched his delegations so as to even amend the constitution of India.

In the Puranlal Lakhanpal Vs. the President of India and Others case the apex court (Justice Gajendragadkar, P.B. Sarkar, A.K. Wanchoo, K.N., Gupta, K.C. Das, Ayyangar, N. Rajagopala Writ Petition No. 139 of 1957 under Art. 32 of the Constitution of India for enforcement of Fundamental rights. Date of Judgment: 30/03/1961 ) held, that the word “modification” used in Art. 370(I) must be given the widest meaning in the context of the Constitution and in that sense it includes an amendment and it cannot be limited to such modifications as do not make any “radical transformation”. Where as in the case of Art 35A the question was not of modification or amendment of an existing constitutional provision but it was surely of adding a new article amounting to unduly amending the constitution by the President ( not simply ordering some exceptions and modifications of some existing provisions of constitution of India for direct application with regard to Indian state of Jammu and Kashmir ).
Similarly in the Writ Petition No. 11 of 1968 under Art 32 of the Constitution of India for the enforcement of the fundamental rights, Sampat Prakash vs State Of Jammu & Kashmir &Anr Bench BHARGAVA, VISHISHTHA HIDAYATULLAH, M. (CJ) SHELAT, J.M. MITTER, G.K. VAIDYIALINGAM in judgement delivered on 10 October, 1968 the Hon’ble SC had observed to go with the judgement delivered by a larger bench in the case Puranlal Lakhanpal v. The President of India, 1962. So, .
Even if these judgements are kept in view , no doubt it is true that Art 370 (1-d) says that President may apply the provisions of the Constitution to the State of Jammu & Kashmir with such modifications as he may by order specify but that can be taken as making reference only to the provisions that existed in the constitution and cannot be stretched to ‘amend’ (modifying) the Constitution itself i.e adding some new article in the Constitution of India as has been done by adding a new Article namely Art35A after Article 35 ( but so strangely not keeping it in the main body of the constitution, why ? is a fair question ) in constitution of India by the President by issuing the Constitution application ( to Jammu and Kashmir ) order of 1954 C.O. 48 .
Even within the scope of sub- clause (d) of clause (1) of Article 370 an order for adding a new article in the constitution cannot be defended or taken refuge under this provision which only allows modification of some existing constitutional provision and cannot be used for amending the constitution of India to the extent of even adding a new article. So, an order, said to have been issued under Art 370(1) so as to add new article in COI does not fall in the class of modifying an existing provision as provided in Art 370 w.r.t the Indian state of J&K
No doubt addition to questions raised in foregoing para (s), the contents of Section-4(j) of the Constitution (Application to Jammu and Kashmir) Order, 1954 C.O. 48 were also being put under the question mark by some for being unconstitutional and void on the ground that the contents of Art 35A damage the basic structure of the Constitution as regards the fundamental rights of some citizens of India and in a way go beyond even the jurisdiction that Parliament has under the constituent power contained in Art 368 for amending the COI but not much discussion was done in that direction.
Hence here we are discussing & questioning only the technicalities / jurisdictions as regards the ‘birth’ of Art 35A and the authority delegated / powers conferred on the president under sub- clause 1-d of Art-370 of COI. So far Art 35A ,had been taken as valid and legitimate article of Constitution of India but it was now being put under question mark.
Article 35A that technically & legally even did not qualify to be an Art of Constitution of India had already done enough damage & in a way directly or indirectly could be alleged to have been also used for promoting / promoted separatist ideologies so it had to be otherwise also declared a nonexistent Article of Constitution of India without any delay or constitutionally held invalid or removed in a “similar way” by a presidential order. In other words need was not only to abrogate it or to modify it or to amend it but need was to Undo its existence. And at last it was made nonexistent by issuing another presidential order on 05-8-2019 i.e C.O 272. In a way it will not be wrong to also say that the “first victim” of Art35A had been even Constitution of India.
(The writer is Sr Journalist & analyst of J&K Affairs)